Академический Документы
Профессиональный Документы
Культура Документы
1. DEFINITIONS.
1.1 “Affiliate” means, with respect to a party at a given time, an entity that
then is directly or indirectly controlled by, is under common control with, or
controls that party, and here “control” means an ownership, voting or similar
interest representing fifty percent (50%) or more of the total interests then
outstanding of that entity.
1.5 “License” means a license granted under Section 2.1 (General License
Grant).
1.6 “License Key” means a serial number that enables You to activate and
use the Software.
1.7 “License Term” means the duration of a License as specified in the Order.
1.8 “License Type” means the type of License applicable to the Software, as
more fully described in the Order.
1.13 “Software” means the VMware Tools and the VMware computer
programs listed on VMware’s commercial price list to which You acquire a license
under an Order, together with any software code relating to the foregoing that is
provided to You pursuant to a support and subscription service contract and that
is not subject to a separate license agreement.
1.14 “Territory” means the country or countries in which You have been invoiced;
provided, however, that if You have been invoiced within any of the European
Economic Area member states, You may deploy the corresponding Software
throughout the European Economic Area.
1.15 “Third Party Agent” means a third party delivering information technology
services to You pursuant to a written contract with You.
1.16 “Virtual Machine” means a software container that can run its own
operating system and execute applications like a physical machine.
1.18 “VMware Tools” means the suite of utilities and drivers, Licensed by
VMware under the “VMware Tools” name, that can be installed in a Guest
Operating System to enhance the performance and functionality of a Guest
Operating System when running in a Virtual Machine.
2. LICENSE GRANT.
2.2 Third Party Agents. Under the License granted to You in Section 2.1
(General License Grant) above, You may permit Your Third Party Agents to
access, use and/or operate the Software on Your behalf for the sole purpose of
delivering services to You, provided that You will be fully responsible for Your
Third Party Agents’ compliance with terms and conditions of this EULA and any
breach of this EULA by a Third Party Agent shall be deemed to be a breach by
You.
2.3 Copying Permitted. You may copy the Software and Documentation as
necessary to install and run the quantity of copies licensed, but otherwise for
archival purposes only.
2.5 VMware Tools. You may distribute the VMware Tools to third parties
solely when installed in a Guest Operating System within a Virtual Machine. You
are liable for compliance by those third parties with the terms and conditions of
this EULA.
3. RESTRICTIONS; OWNERSHIP.
3.1 License Restrictions. Without VMware’s prior written consent, You must
not, and must not allow any third party to: (a) use Software in an application
services provider, service bureau, or similar capacity for third parties, except that
You may use the Software to deliver hosted services to Your Affiliates; (b)
disclose to any third party the results of any benchmarking testing or comparative
or competitive analyses of VMware’s Software done by or on behalf of You,
except as specified in Section 2.4 (Benchmarking); (c) make available Software
in any form to anyone other than Your employees or contractors reasonably
acceptable to VMware and require access to use Software on behalf of You in a
matter permitted by this EULA, except as specified in Section 2.2 (Third Party
Agents); (d) transfer or sublicense Software or Documentation to an Affiliate or
any third party, except as expressly permitted in Section 12.1 (Transfers;
Assignment); (e) use Software in conflict with the terms and restrictions of the
Software’s licensing model and other requirements specified in Product Guide
and/or VMware quote; (f) except to the extent permitted by applicable mandatory
law, modify, translate, enhance, or create derivative works from the Software, or
reverse engineer, decompile, or otherwise attempt to derive source code from the
Software, except as specified in Section 3.2 (Decompilation); (g) remove any
copyright or other proprietary notices on or in any copies of Software; or (h)
violate or circumvent any technological restrictions within the Software or
specified in this EULA, such as via software or services.
3.3 Ownership. The Software and Documentation, all copies and portions
thereof, and all improvements, enhancements, modifications and derivative
works thereof, and all Intellectual Property Rights therein, are and shall remain
the sole and exclusive property of VMware and its licensors. Your rights to use
the Software and Documentation shall be limited to those expressly granted in
this EULA and any applicable Order. No other rights with respect to the Software
or any related Intellectual Property Rights are implied. You are not authorized to
use (and shall not permit any third party to use) the Software, Documentation or
any portion thereof except as expressly authorized by this EULA or the applicable
Order. VMware reserves all rights not expressly granted to You. VMware does
not transfer any ownership rights in any Software.
5. RECORDS AND AUDIT. During the License Term for Software and for
two (2) years after its expiration or termination, You will maintain accurate
records of Your use of the Software sufficient to show compliance with the terms
of this EULA. During this period, VMware will have the right to audit Your use of
the Software to confirm compliance with the terms of this EULA. That audit is
subject to reasonable notice by VMware and will not unreasonably interfere with
Your business activities. VMware may conduct no more than one (1) audit in any
twelve (12) month period, and only during normal business hours. You will
reasonably cooperate with VMware and any third party auditor and will, without
prejudice to other rights of VMware, address any non-compliance identified by
the audit by promptly paying additional fees. You will promptly reimburse VMware
for all reasonable costs of the audit if the audit reveals either underpayment of
more than five (5%) percent of the Software fees payable by You for the period
audited, or that You have materially failed to maintain accurate records of
Software use.
6. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly
specified in the Product Guide, VMware does not provide any support or
subscription services for the Software under this EULA. You have no rights to
any updates, upgrades or extensions or enhancements to the Software
developed by VMware unless you separately purchase VMware support or
subscription services. These support or subscription services are subject to the
Support Services Terms.
7. WARRANTIES.
9. LIMITATION OF LIABILITY.
10. TERMINATION.
10.1 EULA Term. The term of this EULA begins on the notice of availability for
electronic download or delivery of the Software and continues until this EULA is
terminated in accordance with this Section 10.
10.2 Termination for Breach. VMware may terminate this EULA effective
immediately upon written notice to You if: (a) You fail to pay any portion of the
fees under an applicable Order within ten (10) days after receiving written notice
from VMware that payment is past due; or (b) You breach any other provision of
this EULA and fail to cure within thirty (30) days after receipt of VMware’s written
notice thereof.
10.3 Termination for Insolvency. VMware may terminate this EULA effective
immediately upon written notice to You if You: (a) terminate or suspend your
business; (b) become insolvent, admit in writing Your inability to pay Your debts
as they mature, make an assignment for the benefit of creditors; or become
subject to control of a trustee, receiver or similar authority; or (c) become subject
to any bankruptcy or insolvency proceeding.
10.4 Effect of Termination. Upon VMware’s termination of this EULA: (a) all
Licensed rights to all Software granted to You under this EULA will immediately
cease; and (b) You must cease all use of all Software, and return or certify
destruction of all Software and License Keys (including copies) to VMware, and
return, or if requested by VMware, destroy, any related VMware Confidential
Information in Your possession or control and certify in writing to VMware that
You have fully complied with these requirements. Any provision will survive any
termination or expiration if by its nature and context it is intended to survive,
including Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions;
Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9
(Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12
(General).
12.1 Transfers; Assignment. Except to the extent transfer may not legally be
restricted or as permitted by VMware’s transfer and assignment policies, in all
cases following the process set forth at
www.vmware.com/support/policies/licensingpolicies.html, You will not assign this
EULA, any Order, or any right or obligation herein or delegate any performance
without VMware’s prior written consent, which consent will not be unreasonably
withheld. Any other attempted assignment or transfer by You will be void.
VMware may use its Affiliates or other sufficiently qualified subcontractors to
provide services to You, provided that VMware remains responsible to You for the
performance of the services.
12.2 Notices. Any notice delivered by VMware to You under this EULA will be
delivered via mail, email or fax.
12.3 Waiver. Failure to enforce a provision of this EULA will not constitute a
waiver.
12.4 Severability. If any part of this EULA is held unenforceable, the validity
of all remaining parts will not be affected.
12.5 Compliance with Laws; Export Control; Government Regulations.
Each party shall comply with all laws applicable to the actions contemplated by
this EULA. You acknowledge that the Software is of United States origin, is
provided subject to the U.S. Export Administration Regulations, may be subject to
the export control laws of the applicable territory, and that diversion contrary to
applicable export control laws is prohibited. You represent that (1) you are not,
and are not acting on behalf of, (a) any person who is a citizen, national, or
resident of, or who is controlled by the government of any country to which the
United States has prohibited export transactions; or (b) any person or entity listed
on the U.S. Treasury Department list of Specially Designated Nationals and
Blocked Persons, or the U.S. Commerce Department Denied Persons List or
Entity List; and (2) you will not permit the Software to be used for, any purposes
prohibited by law, including, any prohibited development, design, manufacture or
production of missiles or nuclear, chemical or biological weapons. The Software
and accompanying documentation are deemed to be “commercial computer
software” and “commercial computer software documentation”, respectively,
pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable.
Any use, modification, reproduction, release, performing, displaying or disclosing
of the Software and documentation by or for the U.S. Government shall be
governed solely by the terms and conditions of this EULA.
12.6 Construction. The headings of sections of this EULA are for convenience
and are not to be used in interpreting this EULA. As used in this EULA, the word
‘including’ means “including but not limited to”.
12.7 Governing Law. This EULA is governed by the laws of the State of
California, United States of America (excluding its conflict of law rules), and the
federal laws of the United States. To the extent permitted by law, the state and
federal courts located in Santa Clara County, California will be the exclusive
jurisdiction for disputes arising out of or in connection with this EULA. The U.N.
Convention on Contracts for the International Sale of Goods does not apply.
12.8 Third Party Rights. Other than as expressly set out in this EULA, this
EULA does not create any rights for any person who is not a party to it, and no
person who is not a party to this EULA may enforce any of its terms or rely on
any exclusion or limitation contained in it.